Digest: A judge who is presiding over a criminal proceeding that was originally a
capital punishment case may speak at a law school alumni gathering on
capital punishment issues generally, including potential amendment of
statutes governing fees for capital case defense counsel, but may not
comment specifically on the case pending before the judge.

A judge who is presiding over a criminal action which was commenced as a
capital murder case but which has recently been decapitalized, has been asked to
speak at a law school alumni association meeting. The proposed topics of the
presentation include certain death penalty related decisions made by the judge while
the case was proceeding as a capital case and whether the statutory rates paid to
capital defense lawyers should be reduced. The case will probably still be pending at
the time of the presentation.

The Rules Governing Judicial Conduct prohibit a judge from making any public
comment on any pending or impending proceeding in any court in the United States
or its territories. 22 NYCRR 100.3(B)(8). The Rules, however, do allow a judge to
make public statements explaining the procedures of the court. 22 NYCRR
100.3(B)(8). The Rules also allow a judge to speak, write, lecture, teach and
participate in extra-judicial activities that are not otherwise prohibited. 22 NYCRR
100.4(B).

Thus, the judge may appear and comment on the procedures of the court, on
the topic of capital punishment proceedings and capital punishment issues generally,
and on the law, the legal system and administration of justice, provided such
appearance does not interfere with the judge's judicial duties and the judge does not
make statements that would cast doubt on the judge's impartiality. Opinions 88-106
(Vol. II); 90-181 (Vol. VI); 91-148 (Vol. VIII); 92-50 (Vol. IX); 92-67(Vol. IX). Permissible
statements include commenting on whether a statute governing the fees paid to
capital defense lawyers should be amended.

The judge, however, may not comment specifically on the pending matter,
beyond explaining the procedures of the court, even though the decisions involving
capital punishment have been mooted by the decapitalization of the case. Opinion
95-105 (Vol. XIII). The case remains pending, regardless of the disposition of a
particular issue and that suffices to maintain the prohibition against public comment.